By: John O'Brien
In what is believed to be the first lawsuit of its kind to go to trial, a Florida federal judge has ruled for a blind man who has filed nearly 70 lawsuits alleging that various companies’ websites violate the Americans with Disabilities Act.
On June 12, Judge Robert Scola, of the Southern District of Florida, decided that Winn-Dixie’s website is heavily integrated with the company’s physical store locations, making it subject to the ADA. His decision will require the company to update its site.
Plaintiff Juan Carlos Gil is not entitled to damages, but his attorneys will soon submit a request for fees. The company has set aside $250,000 to update the site, though testimony during the trial indicated it will not cost nearly that much.
“The factual findings demonstrate that Winn-Dixie’s website is inaccessible to visually impaired individuals who must use screen reader software,” Scola wrote.
“Therefore, Winn-Dixie has violated the ADA because the inaccessibility of its website has denied Gil the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations that Winn-Dixie offers to its sighted customers.”
Gil sued Winn-Dixie on July 12, 2016, and a two-day bench trial was held June 5-6. Scola’s 13-page decision came a week later.
Experts believe it to be the first trial regarding a website’s accessibility under the ADA. Such lawsuits have become popular in recent years as the Department of Justice has delayed formal regulations.
Those regulations, which will determine how to make a website compliant with the ADA, were first announced in 2010 but won’t be issued until at least 2018.
South Florida is among several jurisdictions that have seen plaintiffs lawyers use their courts to file these claims. Other popular jurisdictions include Western Pennsylvania, California and New York City.
Judges haven’t been waiting around on the DOJ. In March 2016, luggage retailer Colorado Bag’n Baggage was on the wrong end of a summary judgment decision by a California state judge in what was believed to be the first decision of its kind.
Similarly, Scola did not feel the need to wait. His ruling requires Gil’s lawyers and Winn-Dixie to help craft an injunction that outlines how and when the company will update its website.
Gil has several more cases still pending. He filed his first case against Cinepolis in April 2016, and his case against Winn-Dixie was the third he submitted.
On June 6, the second day of the Winn-Dixie trial, he filed three more cases. Court records show he has filed 67 ADA website lawsuits. He is represented by Richard Francis Della Fera of Entin & Della Fera in Fort Lauderdale, FL, and Scott Richard Dinin in Miami.
Minh Vu, a partner at Seyfarth Shaw, said the decision is significant for companies facing these lawsuits.
"To the extent that businesses are considering whether to settle or litigate these cases, this decision makes the possibility of an adverse verdict much more real," she said.
Scola ordered the company to comply with what Vu describes as the "de facto" standard - the Web Content Accessibility Guidelines (WCAG) 2.0 Level AA drafted by accessibility experts.
Gil can’t see the screen of his computer but uses JAWS or other screen reader software that tells Gil the details of the site he is visiting. When he hits the tab and shift buttons, it tells him what he needs to type.
Gil uses the Winn-Dixie site to buy groceries and prescription drugs. He wants to use the websites to find coupons and refill prescriptions. Scola wrote that the company is currently building an ADA policy for its site but does not currently have one.
Chris Keroack, an employee of software testing company Equal Entry, estimated it would cost less than $37,000 for the company to update its site.
One of the main questions Scola was tasked with deciding was whether the website is a “place of public accommodation” under the ADA. Because the site is “heavily integrated” with Winn-Dixie’s stores, it is, Scola ruled.
Scola did not decide whether the website, absent that integration, is a place of public accommodation.
“Although Winn-Dixie argues that Gil has not been denied access to Winn-Dixie’s physical store locations as a result of the inaccessibility of the website, the ADA does not merely require physical access to a place of public accommodation,” Scola wrote.
“Rather, the ADA requires that disabled individuals be provided ‘full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.’”